This past week, former Senator Fred Thompson created a committee to explore a run for the Presidency. In every article written about the former Senator, like one recently run in the Washington Post, mention is made of his current broadcasting career – his role on Law and Order and as a guest host on Paul Harvey’s radio program. And all the articles assume that the campaign will result in the termination of these roles, and also present issues about the broadcast and cablecast of reruns of Law and Order episodes and old movies in which he appeared. In some cases, that is true. In others, it remains to be seen. But the potential candidacy does offer a good opportunity for a review of the equal time obligations of broadcasters under FCC rules.
"Equal time" or "equal opportunities" require that broadcast stations give treat candidates for the same political race in an even-handed fashion. If they sell time to one candidate, they have to give the other candidate equal opportunities to buy the same amount of time in programs reaching roughly the same size audience. If time is provided to a candidate without charge, and the candidate’s on-air appearance is outside of a news or news interview programs and is not part of on-the-spot coverage of a news event, then the broadcaster must make equal time available to the opposing candidate, if that candidate requests it within 7 days of the use by the first candidate.
However, none of these obligations arise until a candidate is legally qualified – essentially when he or she has filed the necessary papers to obtain a place on the ballot in accordance with the governing law of the jurisdiction in which the election will be held. In Thompson’s case, as he has not even officially announced that he is running, he is not yet a legally qualified candidate, so for the time being, there is no issue with the continued airing of the programs in which he appears.
In Presidential races, once a candidate becomes legally qualified in 10 states, he or she is legally qualified in every state. In the primary, that presents some issues – as many of the "primary" states don’t have primaries but instead have caucuses. For FCC political rules purposes, lowest unit charges do apply to a caucus – but the FCC has not defined when a candidate for president becomes legally qualified in a caucus state which does not have any required registration process. For non-Presidential races, there is a presumption that one is not legally qualified more than 90 days before a primary – but that specific ruling does not apply in the Presidential race. So when a Presidential candidate is legally qualified in 10 states may be difficult to determine. it may be, with so many state moving their primaries to early February (see our comment on this move), the issue may be settled quickly as candidates become qualified in primary states with formal filing deadlines.
Cable presents another problem. Thompson has already announced that he will not be returning to Law and Order in September, and it would seem likely that many TV stations will not be running movies in which he has appeared once his candidacy becomes official and he is legally qualified. But what about cable? The equal opportunities rules are, by their terms, applicable to "local origination cablecasting." But what does that mean? Are cable networks like TNT, which broadcast Law and Order episodes, covered? While many cable networks take the position that they are not covered by the rules, they nevertheless tend to take off programming which could trigger the rules and force a test case of how far the rules do extend. For instance, when Arnold Schwarzenegger ran for governor of California, Terminator movies were nowhere to be seen.
So a Thompson candidacy may banish the last few years of Law and Order from the airwaves and from cable, but can those reruns be shown on the Internet? Apparently – the answer is yes. Thus far, none of the political rules have been officially extended to the Net other than some vague statements that a broadcaster, who sells Internet spots as part of a package with broadcast spots, may need to also sell those spots to candidates – especially if they are sold to one candidate for a particular race. But, otherwise, Law and Order online could continue to offer Fred Thompson episodes even during his candidacy.
In fact, the Internet is proving to be more of a force in political campaigns, partially as it is free of so much regulation. An LA Times article talks about the ability of candidates to post messages online that they might not want to broadcast on television – free from regulation. As this most unusual political year rolls on – with so many candidates running for President – watch for the new media to play an even bigger role in the political campaign. And, as it does, watch for more calls for legislation to regulate that roll.